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HomeMy WebLinkAboutMeasure G Implementation MemoP CLEMENT SHUTE, JR. iK I. WEINBERGER RC B. MIHALY, P.C. FRAM M.LAYTON RACHEL B. HOOPER ELLEN J. GARBER CHRISTY H. TAYLOR TAMARA S. GALANTER ELLISON FOLK RICHARD S. TAYLOR SUSANNAH T. FRENCH WILLIAM J. WHITE JOSEPH E. JARAMILLO ROBERT S. PERLMUTTER AARON S. ISHERWOOD SUSAN S. CLEVELAND OSA L. ARMI SHUTE, MIHALY & WEINBERGER LLP ATTORNEYS AT LAW 396 HAYES STREET SAN FRANCISCO, CALIFORNIA 94102 TELEPHONE: (415) 552-7272 TELECOPIER: (415) 552 -5816 MEMQRANDUM TO: City Council Planning Commission , City of Saratoga FROM: Richard S. Taylor, City Attorney DATE: September 2, 1999 RE: Interpretation and Implementation of Measure G T LAUREL L. IMPETT, AICP URBAN PLANNER ELIZABETH M. DODD OF COUNSEL As you requested, we have researched the principles applicable to interpretation and implementation of Measure G. We conclude that with the exception of the voter approval requirement applicable to amendments to the General Plan policies adopted in Measure G, the policies in Measure G are subject to the same standards of interpretation and implementation that are applicable to all other policies in the City of Saratoga General Plan. Below we briefly summarize Measure G and then outline the legal principles applicable to interpretation and implementation of General Plan policies. umm rY of Measure G Measure G was adopted by the voters of the City of Saratoga in March, 1996. Measure G readopted and reaffirmed certain policies of the General Plan in effect at the time the initiative was filed. In addition, Measure G added several new policies to the General Plan. The new policies imposed a voter approval requirement for amendments to the policies that were reaffirmed and readopted by the Measure. The new policies also set forth certain exceptions to the voter approval requirement. City Council September 2, 1999 Page 2 The existing policies reaffirmed and readopted by Measure G included policies specifying the maximum densities and intensities of uses permitted in the six residential land use subcategories established in the General Plan, including "Hillside Conservation Single Family," "Very Low Density Single Family," "Low Density Single Family," "Medium Density Single Family," "Multi Family," and "P -D (Planned Development) Residential' as those policies were in effect as of August 7, 1995. Measure G also reaffirmed and readopted those land use designations as they appeared on the General Plan land use map as amended through August 7, 1995. The Measure also reaffirmed and readopted the "Outdoor Recreation" land use designations of the City of Saratoga General Plan land use map. Elections Code section 9217 provides that the provisions of an initiative adopted by the voters may not be amended except by a subsequent vote of the people unless otherwise provided within the text of the initiative. The new General Plan policies adopted by Measure G implement this provision. The new policies specify that certain of the existing General Plan policies reaffirmed and readopted by the Measure may be amended only by a vote of the people. The new policies go on, however, to permit amendments by the City Council under certain circumstances. Measure G also includes an implementation section. That section provides the manner in which the amendments adopted by Measure G are to be reflected in the General Plan. This section also restates the general state law requirement that all actions by the City must be consistent with the General Plan as amended by Measure G. Measure G concludes with provisions exempting projects with vested rights, allowing severance of any invalid portions of the measure, and restating the state law requirement that only the City voters may approve amendment or repeal of the measure as a whole. Interpretation and Implementation of Measure G Interpretation and implementation of the policies reaffirmed and readopted by Measure G as well as the policies newly adopted by the Measure are subject to the same rules of interpretation and implementation that are applicable to all other policies in the General Plan. The law governing interpretation and implementation of General Plan policies makes no distinction between policies adopted by initiative and policies adopted City Council September 2, 1999 Page 3 by the City Council.' DeVita v. County of Napa (1995) 9 Cal. 4' 763, explaining that General Plan amendments adopted by initiative are subject to the same standards of judicial review as General Plan amendments adopted by elected officials.) The discussion below first describes the issues relevant to interpretation of General Plan policies such as those adopted by Measure G and then describes issues relevant to implementation of the policies adopted by Measure G. The law governing interpretation of measures adopted by voter initiative is identical to the law governing interpretation of measures adopted by elected officials. (fig g�g, People v. Bustamante (1997) 57 Cal.AppAth 693, 699 n.5.) Long- established rules of statutory construction provide that the agency or court interpreting the statute must look first to the plain text of the statute, if further guidance is required, the agency then considers the measure's purpose and plain meaning and materials considered by the body adopting the statute. Thus, in the case of a statute adopted by the state legislature, a court may consider staff reports considered by the legislature in the course of considering the particular piece of legislation. Similarly, in interpreting ambiguous provisions in an initiative measure, the court will consider materials considered by the voters at the time the measure was adopted. These most typically include the arguments included in the ballot pamphlet. (5e Legislature of State of California v. Eu (1991) 54 Cal. 3d 492, 503 -04.) In addition, the courts have held that elected officials may adopt implementing procedures to implement initiatives and may exercise discretion in developing such procedures where the terms of the initiative are ambiguous or provide no guidance with respect to the implementation issue at hand. (Creighton v. City of Santa Monica (1984) 160 Cal. App. 3d 1011, 1021.) Of course any such procedures must be true implementation measures and must not frustrate the purposes of the measure in question. (Proposition 103 Enforcement Project v. Quackenbush (1998) 64 Cal. App. 4th 1473.) Interpretation of the policies adopted by Measure G -- as well as all other General Plan policies -- is required whenever the Planning Commission or City Council is called upon to determine whether a proposed ordinance or project approval is "consistent" with the General Plan. Government Code section 65860(a) requires that the 'Interpretation and implementation of General Plan policies does not include amendment of those policies. As noted above, policies adopted by an initiative such as Measure G differ from other policies in that they may be amended only by a vote of the people except as otherwise specified in the initiative measure. (S= Elections Code § 9217.) City Council September 2, 1999 Page 4 "various land uses authorized by the [zoning] ordinance are compatible with the objectives, policies, general land uses, and programs specified" in the General Plan. The courts have indicated that this consistency principle applies to conditional use permits and variances as well. (&r, Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal. 3d 553, 570; Neighborhood Action Group v. County ofCalaveras (1984) 156 Cal. App. 3d 1176, 1184.) Thus, General Plan policies such as those adopted by Measure G are typically interpreted in the context of a specific ordinance or action to determine whether that action is consistent with the General Plan. The General Plan Guidelines prepared by the Governor's Office of Planning and Research provide that "an action, program or project is consistent with the General Plan if, considering all its aspects, it will further the objectives and policies of the General Plan and not obstruct their attainment." (S= Guidelines p. 128 (1998).) The courts have indicated that although a precise match between the action in question and General Plan policies is not required, the City Council must rely on reasonable judgment in concluding that the action in question is consistent with the plan as a whole. Thus, in upholding a consistency determination notwithstanding an apparent inconsistency between a project and three specific General Plan policies, the Court of Appeal recently explained that: "no project could completely satisfy every policy stated in the General Plan, and that state law does not impose such a requirement. A General Plan must try to accommodate a wide range of competing interests - - including those of developers, neighboring homeowners, prospective homebuyers, environmentalists, current and prospective business owners, job seekers, taxpayers, and providers and recipients of all types of city - provided services -- and to present a clear and comprehensive set of principles to guide development decisions. Once a General Plan is in place, it is the province of elected officials to examine the specifics of a proposed project to determine whether it would be `in harmony' with the policies stated in the plan. It is emphatically not the role of the courts to micro manage these decisions. Our function is simply to decide whether the city officials considered the applicable policies and the extent to which the proposed project conforms with those policies, whether the city officials made appropriate findings on this issue and whether those findings are supported by substantial evidence." (Sequoyah Hills Homeowners Association v. City of Oakland (1993) 23 Cal. App. 4" 704, 719 -720.) City Council September 2, 1999 Page 5 Where there is no evidence to indicate that a project or ordinance is consistent with the plan as a whole, however, the courts will not hesitate to invalidate such actions. In Families Unafraid to Uphold Rural El Dorado County v. El Dorado County (1998) 62 Cal. App. 4' 1332, for example, the court overturned a rezoning intended to accommodate a 566 lot subdivision because the lands to which the zoning designation was applied failed to satisfy any of the applicable criteria set forth in the General Plan. The court noted that although courts typically defer to the judgment of elected officials where there is conflicting evidence concerning an action's consistency with the General Plan, no such deference is due where there is no evidence to support the decision in question. (U at 1342.) Based on the foregoing principles, the Planning. Commission and City Council have considerable discretion in interpreting the provisions of Measure G. The breadth of discretion is comparable to that available to the Commission and Council in interpreting other provisions of the General Plan.' Determinations as to whether a particular action is consistent with the General Plan must be made with regard to the General Plan as a whole and not with respect to any single provision of the General Plan. Thus, "interpretation of Measure G" cannot proceed in a vacuum, but rather, must proceed in the context of other General Plan policies relevant to the proposed project or program in question. Similarly, the manner in which Measure G is implemented is subject to the exercise of discretion by the Planning Commission and City Council. The only implementation requirement imposed by Measure G is that amendments to specified provisions in the General Plan be approved by a vote of the people. Following adoption of Measure G, the City Council adopted Resolution No. 96 -28 "Establishing Policies Determining and Processing Projects Requiring a Vote of the People under the Provisions of the Land Use Element of the General Plan (Measure G Implementation). That resolution was amended in September, 1998. A copy of the resolution as amended is attached. The resolution sets forth the process for determining whether a project 'In both cases, however, the City may not use this discretion in making consistency determinations to, in effect, amend policies set forth in the general plan. (See DeNta v. County of Napa (1995) 9 CalAth 763, 792 n. 10; Proposition 103 Enforcement Project v. Quackenbush (1998) 64 Cal.AppAth 1473, 1484 -87.) City Council September 2, 1999 Page 6 requiring a General Plan amendment is subject to Measure G's voter approval requirement. As originally adopted, the resolution stated that the City Council would allow the applicant for a General Plan amendment to determine whether that amendment would be considered by the voters before or after consideration by the Planning Commission and City Council of the development project related to the amendment. The amended resolution requires that in most cases the election take place only after initial approval of the project following by the Planning Commission and City Council. Either implementation approach is permitted under Measure G; neither is required by any aspect of the language included in Measure G. Measure G is silent as to the timing of elections seeking voter approval of General Plan amendments. Thus, Measure G allows the City Council complete discretion with respect to the timing of General Plan amendment elections. (5j= Citizens for Responsible Government v. City of Albany (1997) 56 Cal.AppAth 1199, 1208 -09; Creighton v. City of Santa Monica (1984) 160 Cal. App. 3d 1011, 1021.) In conclusion, interpretation and implementation of the General Plan policies adopted by Measure G are subject to the same rules governing interpretation and implementation of all other policies of the General Plan. The only exception is that amendments to the policies reaffirmed and readopted by Measuire G must be approved by a vote of the people. The determination of whether a particular use or project is consistent with the General Plan must be made in accordance with established principles governing consistency determinations. The manner in which the voter approval requirement of Measure G is implemented is not mandated by Measure G and therefore lies within the reasonable discretion of the Planning Commission and the City Council. Please do not hesitate to contact me if you have any questions regarding these issues. Attachment cc: _ Larry Perlin, City Manager James Walgren, Director of Community Development [P:\.SARATOGA\MAT 1\RST012.MEM] 0�Ulff o2 O&MEIZOO& 13777 FRUITVALE AVENUE • SARATOGA, CALIFORNIA 95070 • (408) 863 -1200 MEMORANDUM TO: Mayor and Members of the City Council FROM: James Walgr n, munity Development Director DATE: September 8, 1998 SUBJECT: Measure G Implementation Resolution DISCUSSION COUNCIL MEMBERS Stan Bogosla- E Jacoos Alorar. Jan' Shata Dona: - Wane At the July 7, 1998 adjourned City Council meeting the Council discussed revising the current Measure G implementation policy as a result of the Barry Swenson proposal to build a senior care facility in Saratoga. Swenson's proposal was determined to be subject to the requirements of Measure G and they were requesting to have their project go directly to an election without having to go through the,regular Planning Commission and City Council public hearing and environmental review process. The current implementation policy permitted this. The Council moved to require that the project go through the customary review process first, and directed staff to present a revised implementation policy for later consideration. Staff had recommended that all Measure G projects be subject to the standard development review process prior to an election. Councilmembers were concerned that this policy might impose an unfair burden on minor projects that were subject to Measure G's broad language. As a result, staff was asked to prepare the attached revised implementation policy with an exception provision. Since it became difficult to draft language that would cover every possible situation that may be eligible for this exception, staff included language that any exception request would be subject to City Council approval. RECOMMENDATION Review the attached revised implementation policy Resolution and direct staff to schedule the Resolution for formal adoption at the next available City Council meeting, either as presented or as modified by Council. This Resolution has been modified from the original text only as indicated by stkethrQu or highlight, with strikethrough being deleted language and highlight being new language. Attachments: 1. Resolution 96 -28 2. City Council minutes dated July 7, 1998 RESOLUTION NO. 96 -28.1 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SARATOGA ESTABLISHING POLICIES DETERMINING AND PROCESSING PROJECTS REQUIRING A VOTE OF THE PEOPLE UNDER THE PROVISIONS OF THE LAND USE ELEMENT OF THE GENERAL PLAN (MEASURE G IMPLEMENTATION) WHEREAS, on March 26, 1996, the voters approved a measure (Measure G) to change the text of the Land Use Element of the General Plan to require that certain amendments to said Land Use Element may only be made by a vote of the people, and WHEREAS, on April 23, 1996, the City Council did certify the results of the March 26, 1996, election and adopted a resolution incorporating the Measure G amendments into the Land Use Element, and WHEREAS, as a result of the adoption of said resolution the amendments to the Land Use Element became effective on May 3, 1996, and WHEREAS, in order to establish policies to effectively implement the change to the Land Use Element, the City Council did at a regular adjourned meeting held on May 7, 1996, at a regular meeting held May 15, 1996, and at regular adjourned meetings held on July 7, 1998 and September 8, 1998, consider various proposals and recommendations for the implementation of Measure G, and WHEREAS, at the conclusion of its deliberations the City Council did on May 15, 1996, and as further modified on September 8, 1998, by a series of votes adopt policies relating to the implementation of Measure G. NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of Saratoga, as follows: 1. * Staff is to use a two part test to determine if a project is subject to Measure G. The first part of the test is to determine if the proposed project property is currently located in one of the General Plan Land Use Designations contained in that portion of the Land Use Element of the General Plan covered by Measure G. If the property is located in one of the affected General Plan Land Use Designations then the staff will apply the second part of the test to determine if the project proposes to 1) change a General Plan Land Use Designation so that it would be subject to Measure G or, 2) increase specified densities or intensities which exceed the limits set forth in the Land Use Element of the General Plan or, 3) in the case of the Outdoor Recreation General Plan Land Use Designation, involves no recreation facilities, or involves no structures which are necessary to support the parks, or involves no structures of particular historic value. If the project proposes to either 1) change a General Plan Land Use Designation of the property so that it would be subject to Measure G, or 2) increases development density or intensity limits, except in the Outdoor Recreation General Plan Land Use Designation, Measure G would apply. If the project is in the Outdoor Recreation General Plan Land Use Designation and proposes to create facilities which are not recreational in nature, or which do not support the purposes of the park, and involves no structures of particular historic value then the project would be subject to Measure G. 2. If the staff determines a project is subject to Measure G it is to prepare a report to the applicant, at the applicant's cost, outlining the submittals required to complete applications for project review, the applicant's right to have a project considered or to have a General Plan amendment placed before the voters for consideration, the costs for such requests, and the effect approval of the amendment would have on future development of the property. 3. Applications for development which are determined to be subject to the election requirements of the General Plan, as set forth in Measure G, shall become subject to review by the Planning Commission and City Council under current procedures, and only upon approval shall proceed to election. 4. Applications which are determined to be subject to the election requirements of the General Plan, as set forth in Measure G, which would not result in an actual increase in the number of dwelling units allowed on the affected land, and which would not result in land designated as Residential or Outdoor Recreation being changed to a more intensive land use designation, shall become subject to review by the Planning Commission and City Council under current procedures, and only upon approval shall proceed to election or, at the request of the applicant and at the option of the City Council may proceed to election without further review. 5. Administrative determinations as to a project's status under Measure G may be appealed as currently set forth in Article 15 -90 of the Municipal Code. 6. The timing of elections required by Measure G shall be determined by and the cost of the election paid for by the project applicant, such costs to be determined by the Finance Director and include all actual direct costs of the election and such indirect, general and overhead costs as may be determined appropriate by the Director of Finance in accordance with generally accepted accounting principles. 7. The provisions of Measure G allowing the City Council, under limited circumstances, to approve a redesignation of Measure G protected land use designations, (e.g., by exception) are to be considered only subsequent to the voters failing to approve an amendment to the General Plan which would remove the condition requiring an application for exception. Requests for exception shall be submitted by separate application. The above and foregoing resolution was passed and adopted by the Saratoga City Council at a regular meeting held on the :8.-th day of September, 1998, by the following vote: AYES: Counci lmembers Bogosi an, Jacobs, . Moran, Shan and flayor Wolfe NOES: None ABSENT: None ATTEST: Deputy City Clerk RESOLUTION NO. 96-28 RESOLUTION OF THE CITY COUNCIL OF THE CITY'OF SARATOGA ESTABLISHING POLICIES DETERMINING AND PROCESSING PROJECTS REQUIRING A VOTE OF THE PEOPLE UNDER THE PROVISIONS OF THE LAND USE ELEMENT OF THE GENERAL PLAN (MEASURE G IMPLEMENTATION) WHEREAS, on March 26, 1996, the voters approved a measure (Measure G) to change the text of the Land Use Element of the General Plan to require that certain amendments to said Land Use Element may only be made by a vote of the people, and WHEREAS, on April 23, 1996, the City Council did certify the results of the March 26, 1996, election and adopted a resolution incorporating the Measure G amendments into the Land Use Element, and WHEREAS, as a result of the adoption of said resolution the amendments to the Land Use Element became effective on May 3, 1996, and WHEREAS, in order to establish policies to effectively implement the change to the Land Use Element, the City Council did at a regular adjourned meeting held on May 7, 1996, and at a regular meeting held May 15, 1996, consider various proposals and recommendations for the implementation of Measure G, and WHEREAS, at the conclusion of its deliberations the City Council did on May 15, 1996, and as further modified on , 1998, by a series of votes adopt policies relating to the implementation of Measure G. NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of Saratoga, as follows: 1. Staff is to use a two part test to determine if a project is subject to Measure G. The first part of the test is to determine if the proposed project property is currently located in one of the General Plan Land Use Designations contained in that portion of the Land Use Element of the General Plan covered by Measure G. If the property is located in one of the affected General Plan Land Use Designations then the staff will apply the second part of the test to determine if the project proposes to 1) change a General Plan Land Use Designation so that it would be subject to Measure G or, 2) increase specified densities or intensities which exceed the limits set forth in the Land Use Element of the General Plan or, 3) in the case of the Outdoor Recreation General Plan Land Use Designation, involves no recreation facilities, or involves no structures which ate necessary to support the parks, or involves no structures of particular historic value. If the project proposes to either 1) change a General Plan Land Use Designation of the property so that it would be subject to Measure G, or 2) increases development density or intensity limits, except in the Outdoor Recreation General Plan Land Use Designation, Measure G would apply. If the project is in the Outdoor Recreation General Plan Land Use Designation and proposes to create facilities which are not recreational in nature, or which do not support the purposes of the park, and involves no structures of particular historic value then the project would be subject to Measure G. 2. If the staff determines a project is subject to Measure G it is to prepare a report to the applicant, at the applicant's cost, outlining the submittals required to complete applications for project review, the applicant's right to have a project considered or to have a General Plan amendment placed before the voters for consideration, the costs for such requests, and the effect approval of the amendment would have on future development of the property. 3. Applications for development which are determined to be subject to the election requirements of the General Plan, as set forth in Measure G, shall at the option gf the. p k F e,"Q; r Pry -Ged +„ 01"40;; ._ shout fii;tbar ;eAisw, become subject to review by the Planning Commission and City Council under current procedures, and only upon approval shall proceed to election. ^r be, ;;dAb_ d_;aM ^ 4. Applications which are determined to be subject to the election requirements of the General Plan, as set forth in Measure G, which would not result in an actual increase in the number of dwelling units allowed on the affected land, and which would not result in land designated as Residential or Outdoor Recreation being changed -to a more intensive land use designation, shall become subject to review by the Planning Commission and City Council under current procedures, and only upon approval shall proceed to election or, at the request of the applicant and at the option of the City Council may proceed to election without fiuther review. 45. Administrative determinations as to a project's status under Measure G may be appealed as currently set forth in Article 15 -90 of the Municipal Code. 46. The timing of elections required by Measure G shall be determined by and the cost of the election paid for by the project applicant, such costs to be determined by the Finance Director and include all actual direct costs of the election and such indirect, general and overhead costs as may be determined appropriate by the Director of Finance in accordance with generally accepted accounting principles. 67. The provisions of Measure G allowing the City Council, under limited circumstances, to approve a redesignation of Measure G protected land use designations, (e.g., by exception) are to be considered only subsequent to the voters failing to approve an amendment to the General Plan which would remove the condition requiring an application for exception. Requests for exception shall be submitted by separate application. The above and foregoing resolution was passed and adopted by the Saratoga City Council at a regular meeting held on the 5th day of June, 1996, by the following vote: AYES: NOES: ABSENT: ATTEST: Deputy City Clerk Mayor City council .141krift 2 September 8, 1998 City Manager Perlin said the City Attorney would review the current ordinance; cities are beginning to update to keep up with technology. B. Items Suggested by Community Development Director. Heritage Preservation Commission Ordinance Amendments Community Development Director Walgren said the ordinance in the packet was drafted at the request of the Heritage Preservation Commission and will be going to the Planning Commission and City Council soon. He said the ordinance would extend permitting requirements that are currently required for designated historic structures to the entire inventory of potential designated structures. Commissioners expressed concerns that the City does not have the power to say a building will not be demolished. Community Development Director Walgren agreed that Saratoga doesn't have the type of ordinance that a more aggressive community would have. However, in the review process for projects that are subject to additions or renovations they have a great deal of authority. The City Attorney said fewer and fewer cities have ordinances that require someone to keep an old home rather than tear it down, but it can be done. Discussion followed regarding homes built before the 1950s that add character to the community but might not be considered "significant." Community Development Director Walgren said there are distinct degrees of historical significance. The initial list of about 100 buildings was created by the Historic Preservation Commission and has been added to as applications to add onto homes have come through. He said the list is just a record that the building is actually eligible to be a designated heritage resource. Community Development Director Walgren said they have discretion at staff level. He said the process of having the inventory properties go through the Heritage Preservation Commission before they go to the Planning Commission has been implemented for many years and it had not created an undue burden on homeowners. The Commission is trying to codify current practices. He said there would be a full staff report to Planning Commission. Mayor Wolfe directed that staff arrange a meeting of the Heritage Preservation Commission, the Planning Commission and the City Council so that the HPC could share what they feel are the homes of concern for the future. He agreed with Councilmember Bogosian that homeowners need to know if their house is on the HPC's list or is likely to be added to it Preview of vending anolications Community Development Director Walgren presented a verbal update of the following projects: Sisters of Notre Dame - 20+ acres, RFPs for single family homes. The property might yield 8 -10. He said there are constraints concerning compatibility with the natural setting and traffic. He was asked to make sure that was well- documented. Azule Crossing - three acre site, 4 commercial buildings. The applicant wants to build multi -family homes and has submitted revised plans with commercial in front and 75 -80% of the property proposed for residential. Circulation Element Community Development Director Walgren said this is on schedule and they will be sending out the RFP. Staff is considering doing the traditional circulation element in house and using $50,000 which has been set aside for traffic impact area plan studies. City Manager Perlin cautioned Council that more money might be needed for those studies. Mountain Winery Update Community Development Director Walgren said the updated draft EIR has been postponed and will not be available until the end of the year for public review. Staff has met with County planners to make sure the project description was adequate and express concerns regarding the breakdown of additional vehicles. Mayor Wolfe thanked the Planning Commission for their work and their input at this meeting. 5. Measure G Implementation Resolution City Manager Perlin said this item was carried over from the July 7 meeting. He reviewed the staff report and noted a letter from Barry Swenson, Builder that was in Council's packet.